HKSAR v. Ko Biu

CACC 394/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 394 OF 2008

(ON APPEAL FROM HCCC NO. 115 of 2008)

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BETWEEN

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Before: Hon Yeung JA and Wright J in Court

Date of Hearing: 16 June 2009

Date of Judgment: 16 June 2009

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JUDGMENT

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Hon Wright  J (giving the judgment of the Court):

1.On 19 November 2008 the applicant was convicted on his own plea of an offence of wounding with intent to cause grievous bodily harm, contrary to s. 17(a) of the Offences against the Person Ordinance, Cap. 212.  He agreed a summary of facts which disclosed that he and the woman whom he had attacked, both 78 years of age, had been co-residents in a hostel for the elderly; the relationship between them was strained, albeit that the defendant was generally regarded as "difficult"; she was using an exercise machine when the applicant, for no ascertainable reason, approached from behind her and struck her a number of times with what turned out to be a chopper; the applicant then walked away and was later found by the police, who had been summoned, sitting in a corridor with cuts to his neck; they also located, nearby, the chopper and a suicide note; the woman was taken to hospital where she was found to have sustained severe injuries which the judge summarised in these terms:

"... wounds to the right side of her face, her lip, to her scalp and to her right hand. The chop wound to the victim's face extended across the whole of her right cheek to her mouth and exposed part of the gun. Likewise the teeth in that area were also fractured. The victim had three linear lacerations to her scalp of 3 to 7 cm in length which extended down to the skull bone and resulted in a fracture in that area.

The injuries to the victim's right hand included having a portion of her right little finger amputated. Her middle finger was lacerated with the tendon severed and their were multiple lacerations, also with a severed tendon, to the ring finger."

2.Subsequent to his treatment at hospital the applicant was detained in Siu Lam Psychiatric Centre until he appeared before Saw J. On that occasion the judge was shown a report, relating to the applicant, by a psychiatrist who expressed the opinion that he suffered from an organic delusional disorder, schizophrenic in nature, together with a dissocial personality disorder. Correctly, the judge called for two psychiatric reports to enable him to consider making a hospital order pursuant to the provisions of s. 45 of the Mental Health Ordinance, Cap. 136.

3.Those reports were received and placed before the judge. They were in agreement with the earlier diagnosis. They were also in agreement that the applicant's prognosis is poor; it is presently not possible to predict how long it will take for his symptoms to remit; he has poor insight into his condition; he suffers from dissocial personality disorder with a history of heroin-dependent syndrome.

4.The opinion of each psychiatrist was that the applicant should receive an inpatient psychiatric treatment; that an order should be made in terms of s. 45 of the Ordinance; in the applicant's circumstances, that order should be one for an indefinite period for the reasons they expressed. Having considered mitigation the judge made a hospital order detaining the applicant for an indefinite period.

5.The applicant seeks leave to appeal his sentence which, he asserts, was "too heavy for a guilty plea" and seeks a reduction "out of leniency". Ms Monica Chow of counsel, who was appointed to assist the court in the conduct of the appeal, has indicated to us that there is nothing which she has been able to discern which would advance the applicant's cause.

6.It is plain from the material that was before the judge that the applicant is a person who is in need of psychiatric treatment. Given the opinions expressed by the two psychiatrists who variously described the applicant as being "... a psychotic patient with dangerous propensity" and as having "... no remorse and he has a very high propensity for violence." it is equally plain that that treatment need be provided in a custodial setting. There can be no doubt that the judge was correct in making a hospital order.

7.The real complaint seems, to us, to be that the order was made for an indefinite period rather than for a stipulated period. Each psychiatrist was unequivocal in asserting that the duration of the applicant's treatment could not be ascertained at this stage and in recommending that the order be for an unspecified period. Such an order would ensure that the applicant is only returned to society once he is no longer a danger to it, or to himself, a situation which will only arise when he has received sufficient treatment.

8.We are satisfied that there is no merit in this application and that the judge was correct in not stipulating the period of the order. The applicants continued detention will be monitored by the Mental Health Review Board Tribunal on an ongoing basis and it will be in a position to the best determine when the applicant should be released.

9.The application is refused.

Mr Eddie Sean, SADPP,  Department of Justice, for Respondent.

Ms Monica Chow, assisting the court instructed by Messrs. Kwok, Ng and Chan (DLA)

The Applicant in person.